Gross v. Gross

Citation625 S.W.2d 655
Decision Date24 November 1981
Docket NumberNo. WD,WD
PartiesAngelia M. GROSS, Appellant, v. Marian E. GROSS, Respondent. 31902.
CourtMissouri Court of Appeals

Cornelius Roach, III, Kansas City, for appellant.

Joseph H. Moore, Hentzen, Moore & Willy, Kansas City, for respondent.

Before KENNEDY, P. J., SOMERVILLE, C. J., and SHANGLER, J.

SHANGLER, Judge.

The plaintiff Angelia Maria Gross, beneficiary of an express trust, brought suit against the trustee, her mother Marian Gross, for breach of trust and for a declaration to enforce the trust. The trustee denied any breach of fiduciary duty and by affirmative answer asserted that the beneficiary made a gift to the trustee (mother) of the trust proceeds. The case was tried to the court and the trustee mother had judgment.

The beneficiary Angelia was born on January 22, 1959. In her infancy, the parents-then still of one household-undertook to provide for the education of the child by a special bank account with the parents as joint trustees. In some fashion, the repository bank applied the funds as credit against the overdrawn account of father Isadore Gross, and Angelia (by the mother as next friend) sued to recover the trust money. The federal court ordered the bank to restore to the infant the sum of $10,022.76. The decree then directed that the judgment money (less a $2,551.30 attorney fee) be transferred to Waddell & Reed, Inc. for investment as an irrevocable trust, to be used solely for the education of Angelia Maria Gross, according to the form of the declaration approved by the court and appended to the order. 1 The effect of the judicial order was to settle upon the infant Angelia, then eight years old, the benefit of a $7,393.13 fund for her education, held for that irrevocable purpose by the mother as trustee. The funds were invested by attorney Francis Roach, counsel for the minor and her next friend, as prescribed by the court order.

The approved irrevocable Declaration of Trust form recited the provisions:

I, the undersigned, having purchased stock issued by the United Funds, Inc.,-Accumulative Fund, and having directed that ... said stock be issued in my name as Trustee ... for the benefit of Angelia Maria Gross, do hereby declare that the terms and conditions upon which I ... shall hold said stock and the proceeds thereof ... are as follows:

3. (T)his trust shall end and terminate when the trustee or successor trustee shall have determined that the beneficiary's education is complete or that she has received all the education that she desires to take, at which time the unused balance of the trust shall be delivered to the beneficiary.

4. The trust shall be irrevocable and the trustee shall have no power to modify or amend the trust except as heretofore set out or to appropriate any portion of the principal or income to his or her own use or benefit. (emphasis added)

The instrument was marked for the subscription of Marian E. Gross, Trustee for Angelia Maria Gross, a minor. 2

The federal court judgment was affirmed on appeal, the money paid, and shares in an accumulative fund purchased with the $7,393.13 net proceeds in March of 1967 on an open account with Waddell and Reed in the name of the mother as trustee under a declaration of trust for the benefit of daughter Angelia. The dividends were reinvested from March of 1967 through March of 1977 and the trustee received the periodic reports of this activity from the management of the fund. In that interim, no money was withdrawn or expended from the fund for any purpose. Then on March 23, 1977, the trustee mother liquidated all the held shares in the accumulative fund and received a check for $7,615.60 payable to the order of Marian E. Gross, Trustee (under declaration of trust dated 3/10/67) for the benefit of Angelia Maria Gross. The beneficiary Angelia was then eighteen years of age.

In year 1974 the parents became estranged and the following year the marriage ended. The custody of the children Angelia (then sixteen years of age) and Isadore III was granted the mother and the father was assessed for their support. Angelia remained at the maternal residence. She trained as a keypunch operator and in June of 1977 was graduated from high school. Then she completed an abbreviated course as a calculator operator in Pioneer Community College in January of 1978. Angelia was then nineteen years of age. She became fully employed as a key punch operator on November 21, 1977, and since then has been her own support. Angelia left the maternal household on January 12, 1978, and never returned. On March 10, 1978, counsel for the beneficiary Angelia made written demand on the mother as trustee to pay over the $7,615.60 proceeds from the sale of the trust account shares. The trustee mother refused compliance and suit ensued.

The trial court gave judgment to the trustee mother on the determination that the beneficiary daughter, by then sui juris, disclaimed the fund and made a gift of those proceeds to the mother. In the course of the formulation of judgment, the court assessed the contentions of the protagonists, the credibility of the witnesses, discoursed on the legal effect of the transactions between the principals and adjudged that the beneficiary proved no breach of trust and that the trustee acquitted her burden to prove right to the fund by gift. The pronouncement of the court of the grounds for decision, however, was an opinion not formally requested by a party so that, even if erroneously found, does not invalidate the judgment. Prudential Property & Casualty Ins. Co., 586 S.W.2d 433, 435(4) (Mo.App.1979). In such a case the general judgment itself is the basis for review. In that exercise the court on appeal sustains the result on any proven theory and to that end accepts as true the evidence favorable to the judgment and discards the evidence in contradiction. S. G. Adams Printing v. Central Hardware Co., 572 S.W.2d 625, 627(1) (Mo.App.1978).

The imminence of the dissolution of the marriage in year 1974 gave occasion for discussion among the mother and children. 3 The mother enlisted the advice of the children as to a divorce and how to maintain the family in that eventuality. Angelia, for whatever reason, was not questioned on that episode, but her solicitude for the reduced circumstances of the mother upon a divorce was described by other family members.

The brother, Isadore III, testified that the children were aware that a family rupture impended and talked with Angelia (then about fifteen or so years of age) about that concern. Angelia complained that the father had "done her wrong" and "taken advantage of her and deprived her of her allowance money," and that she would reside with her mother in the event the marriage dissolved. They spoke of the trust fund for her education. Angelia told Isadore she did not intend to continue her studies after high school (where they both attended) because she was constantly in trouble there. Angelia expressed that she wanted to make a gift of the trust fund to the mother because: "she felt we were in a financial pinch and she thought it would be best that she turned it over to my mother saying that my mother was the only concerned parent at the time." Angelia told brother Isadore that during the parental separation, the father refused her funds for clothes and would have nothing to do with her. The half-sister Julietta also discussed with Angelia the implications of a parental divorce. Julietta was then on the faculty of the State University of New York and lived away from the home with her husband. They discussed that brother Isadore was in attendance at Iowa University and could be of no help to the mother. They recalled that the mother had never been employed and were vexed as to how the family would manage. They spoke of the trust fund as the resource for the continued education of Angelia, but Angelia expressed that she had no wish for more school but would rather remain at home with the mother. Angelia (then sixteen years of age) insisted recurrently: "I want Mama to have the money to do with as she sees fit." Then in year 1977 after the divorce (Angelia was then eighteen years of age), Angelia visited Julietta in New York for several weeks. In that interim, before the mother and brother Isadore joined them, Julietta probed Angelia seriously about her intention for further education. Julietta reminded Angelia that she had facilitated entry of the brother Isadore into Iowa University, her own alma mater, and that she could assist Angelia as well to enter either Iowa University or the university in New York where she instructed. Angelia responded that she did not care for school, "she was having problems at (the high school) and she just really wasn't interested in school." Julietta reminded Angelia that the trust fund money was available for education, whether by formal college curriculum or by the advancement of the business instruction Angelia already commenced. Angelia responded: "No, I don't want anything to do with it. This money, Mom can use it as she needs it more than I do. I can work." The narrative of the mother trustee was to the same effect. As the divorce loomed more certainly, the children were drawn into concerns for their care since the mother was not trained for employment. In the midst of the family discussions, Angelia, more than once, said: "Mom, remember when I get 18, you've got that money" 4-"Mom, that is yours. Do whatever you want with it." That was, the mother explained, because Angelia knew "whatever she needed, I would provide." Then, after the dissolution became actual in year 1975, Angelia, aware of the fiscal predicament of the family-Isadore III was in attendance at a private high school and then in matriculation at Iowa University, Angelia was in her own course of study, the family was without savings, or necessary insurance coverages (by the account of the mother)-iterated to the mother: "Well, Mom,...

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